Herne Bay Steam Boat v Hutton

Note 1 Annex 1 to this Judgment contains a list of the terms and abbreviations used in this Judgment, stating where each term/abbreviation is first used in the Judgment. [Back]

Note 2 The Points of Claim have been amended once. Save where the contrary is stated, all references are to the latest version of the Points of Claim. [Back]

Note 3 Which have also been amended. Again, all references are to the latest amended version. [Back]

Note 4 See paragraph 78 of the Points of Claim and Section D of the EMA’s written opening submissions. [Back]

Note 5 See paragraphs 79-81 of the Points of Claim and Section E of the EMA’s written opening submissions. [Back]

Note 6 See paragraph 82 of the Points of Claim and Section F of the EMA’s written opening submissions. [Back]

Note 7 The EMA refers (in, e.g. paragraph 149 of its written opening submissions) to the EMA having “no power to meet its future obligations under the Lease once the UK becomes a third country”. In the course of argument, I asked Mr Seitler, QC in terms whether this embraced the obligation to pay rent, and he confirmed that it did. [Back]

Note 8 See paragraph 85 of the Points of Claim and Section G of the EMA’s written opening submissions. [Back]

Note 9 Quoting from paragraph 154 of the EMA’s written opening submissions. See, generally, paragraphs 83-84 of the Points of Claim and Section H of the EMA’s written opening submissions. [Back]

Note 10 See paragraphs 118 ff of CW’s written opening submissions. [Back]

Note 11 See paragraphs 92 ff of CW’s written opening submissions. [Back]

Note 12 The point was pleaded in paragraphs 85 and 101.2 of the Particulars of Claim, but it is fair to say that this point was given greater prominence (although it remained the EMA’s alternative case) in submissions. The position of both parties on certain points evolved over time. Given that all these points were points of law, both parties quite rightly and properly took the view that any prejudice – if any – could be dealt with by ensuring time for additional submissions on such points. The court made such additional time available. [Back]

Note 13 See paragraphs 25 and 75 of the Points of Claim. That explains the conditional references to frustration in this judgment. [Back]

Note 14 Article 1 TEU. [Back]

Note 15 Article 1 TEU. [Back]

Note 16 Naturally, the same pertains for all the other parts of the United Kingdom. However, since I am here concerned with the effect on a Lease governed by English law, I shall where appropriate refer to the law of England. [Back]

Note 17 Described in sections 2 ff of the Act. [Back]

Note 18 Section 1 of the Act. [Back]

Note 19 See Wightman v. Secretary of State for Exiting the European Union (Case C-621/18), EU:C:2018:978 , EU:C:2018:999 , [2018] 3 WLR 1965 . [Back]

Note 20 See paragraph 14(5) above. [Back]

Note 21 Thus, for instance, Articles 7(1), 86, 87, 127(1), 127(3), 127(6), 158, 160 and 161 of the Withdrawal Agreement provide for the continued jurisdiction of the Court of Justice of the European Union (“CJEU”), including as regards: the binding nature of the CJEU’s decisions; the ability in the UK to make preliminary references pursuant to Article 267 TFEU (a “preliminary reference”); and the CJEU’s jurisdiction to determine such preliminary references (a “preliminary ruling”). By contrast, the European Union (Withdrawal) Act 2018 provides that a United Kingdom court or tribunal “is not bound by any principles laid down, or any decisions made, on or after exit day by the [CJEU]” (section 6(1)(a)) and that a United Kingdom court or tribunal “cannot refer any matter to the [CJEU] on or after exit day” (section 6(1)(b)). [Back]

Note 22 This would either be achieved: (1) By way of primary legislation. Section 13 of the European Union (Withdrawal) Act 2018 contains provisions concerning the ratification of any withdrawal agreement, including the Withdrawal Agreement, and provides in section 13(1)(d) that an Act of Parliament must be passed “which contains provisions for the implementation of the withdrawal agreement”; and/or (2) Assuming proper ratification of the Withdrawal Agreement, by way of delegated or secondary legislation pursuant to section 9 of the European Union (Withdrawal) Act 2018. [Back]

Note 23 I stress the “likely”. As I describe, my approach will be to consider Scenario 1 first, followed by Scenario 3. I propose to do this, whatever my conclusion in relation to Scenario 1. [Back]

Note 24 See paragraph 12 above. [Back]

Note 25 My definition of Scenario 1 is at paragraph 15(1) above. [Back]

Note 26 My definition of Scenario 3 is at paragraph 15(3) above. [Back]

Note 27 [1956] 1 AC 696 at 729. [Back]

Note 28 [1981] 1 AC 675 at 700. [Back]

Note 29 [1990] 1 Lloyd’s LR 1 at 8. [Back]

Note 30 See, for example, National Carriers v. Panalpina Ltd , [1981] 1 AC 675 at 687 ( per Lord Hailsham LC), 702 ( per Lord Simon), 717 ( per Lord Roskill). [Back]

Note 31 Per MacKinnon LJ in Southern Foundries (1926) Ltd v. Shirlaw [1939] 2 KB 206 at 227: “For my part, I think that there is a test that may be at least as useful as such generalities. If I may quote from an essay which I wrote some years ago, I then said: “Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying; so that, if, while the parties were making their bargain, an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a common “Oh, of course!””” [Back]

Note 32 At 687. [Back]

Note 33 See, for example, National Carriers v. Panalpina Ltd , [1981] 1 AC 675 at 687 ( per Lord Hailsham LC), 702 ( per Lord Simon). [Back]

Note 34 At 687. [Back]

Note 35 See, for example, National Carriers v. Panalpina Ltd , [1981] 1 AC 675 at 687-688 ( per Lord Hailsham LC), 702 ( per Lord Simon). [Back]

Note 36 At 688. [Back]

Note 37 See, for example, National Carriers v. Panalpina Ltd , [1981] 1 AC 675 at 688 ( per Lord Hailsham LC), 702 ( per Lord Simon), 717 ( per Lord Roskill). [Back]

Note 38 This is why the operation of the doctrine is so difficult as a matter of practice. Contracts, these days, seek to anticipate everything and one factor a court must bear in mind is that the contract – on its true construction – has provided for the risks to fall according to that construction. But, like the implied term theory, it would be an error to assume that every contract precisely allocates the risks arising out of every future eventuality. The weakness of the construction approach is that it assumes – wrongly – that construction or interpretation of the contract can resolve every problem. [Back]

Note 39 See National Carriers v. Panalpina Ltd , [1981] 1 AC 675 at 688 ( per Lord Hailsham LC), 702 ( per Lord Simon), 717 ( per Lord Roskill). [Back]

Note 40 See National Carriers v. Panalpina Ltd , [1981] 1 AC 675 at 688 ( per Lord Hailsham LC), 717 ( per Lord Roskill). [Back]

Note 41 See National Carriers v. Panalpina Ltd , [1981] 1 AC 675 at 688 ( per Lord Hailsham LC), 717 ( per Lord Roskill). [Back]

Note 42 At 717. [Back]

Note 43 [1998] 1 WLR 896 at 912-13 ( per Lord Hoffmann). [Back]

Note 44 [2007] EWCA Civ 547 at [111] (emphasis added). [Back]

Note 45 Although this is a point gives rise to controversy in academic circles, that remains the position in English law: McMeel, McMeel on the Construction of Contracts , 3rd ed (2017) at [5.61] ff . [Back]

Note 46 This point was obviously controversial, and I consider it below. [Back]

Note 47 See paragraphs 63 ff of the EMA’s written opening submissions. [Back]

Note 48 Treitel, Frustration and Force Majeure , 3rd ed (2014) (“ Treitel ”) at [7-001]. [Back]

Note 49 [1903] 2 KB 740 . [Back]

Note 50 [1903] 2 KB 683 . [Back]

Note 51 Treitel , at [7-006]. [Back]

Note 52 By this, I do not read Professor Treitel as stating that these contracts contained a term as regards the purpose of the contract. That would simply be to go back down the constructionist approach that I have rejected. I consider that the term “common purpose” is altogether more apt than “contractual purpose”, for this reason. [Back]

Note 53 Krell v. Henry at 750-751 ( per Vaughan Williams LJ); Herne Bay at 689 ( per Vaughan Williams LJ). [Back]

Note 54 At 691 ( per Sterling LJ). [Back]

Note 55 At 692 ( per Sterling LJ). [Back]

Note 56 At 750 ( per Vaughan Williams LJ). [Back]

Note 57 [2007] EWCA Civ 547 . [Back]

Note 58 These include: impossibility due to the destruction of the subject-matter of the contract ( Treitel , ch 3), other types of impossibility ( Treitel , ch 4) and impracticability ( Treitel , ch 6). [Back]

Note 59 See The Sea Angel at [111], quoted at paragraph 31 above. [Back]

Note 60 The relevant chapter of Treitel (ch 8) is simply entitled “Illegality”. The relevant part of Beale (ed), Chitty on Contracts , 33rd ed (2018) (“ Chitty ”) at [23-022] refers to “Subsequent Legal Changes and Supervening Illegality”. As I have noted, the sort of subsequent illegality that was capable of frustrating a contract was a matter of dispute between the parties and is a matter that will have to be determined. I shall refer generally to “supervening illegality”. [Back]

Note 61 [1942] AC 154 at 163. [Back]

Note 62 Chitty , [16-015]. [Back]

Note 63 Chitty , [16-002]. [Back]

Note 64 Chitty , [16-018]. [Back]

Note 65 As where the objectionable portion of the contract can be severed: Chitty , [16-236]. [Back]

Note 66 Chitty , [23-027] (considering supervening illegality in the context of frustration), [30-281] ff (considering illegality in the contract of private international law). [Back]

Note 67 See paragraph 24 above. [Back]

Note 68 J Lauritzen AS v. Wijsmuller BV, The “Super Servant Two” [1990] 1 Lloyd’s LR 1 at 9. [Back]

Note 69 At 9. The dictum of Griffiths LJ came from The Hannah Blumenthal [1983] 1 AC 854 at 882. [Back]

Note 70 [1935] AC 524 . [Back]

Note 71 At 529-530 ( per Lord Wright). [Back]

Note 72 See paragraph 2.1 of my order dated 26 September 2018. [Back]

Note 73 See paragraph 1 of my order dated 3 December 2018. [Back]

Note 74 See paragraph 1 of Summerfield 1. [Back]

Note 75 See paragraph 20 of Wathion 1. [Back]

Note 76 See paragraph 28 of Wathion 1. [Back]

Note 77 The Lease is dated some time later than this. It was entered into on 21 October 2014. The reason for the earlier date is that the EMA contractually obliged itself to enter into the Lease by an earlier agreement. It was common ground between the parties, and I accept, that this earlier date was the relevant date for these purposes. [Back]

Note 78 I have defined “CW” so as to include the Claimants collectively: see paragraph 1 above. A number of other companies in CW’s group were involved in the development and provision of the Property. I refer to them all, without distinction, as “CW”, for nothing turns on the specific identities. [Back]

Note 79 Paragraph 9 of Iacobescu 1. [Back]

Note 80 The process is described in paragraphs 9 to 14 of Iacobescu 1. See also paragraph 8 of Archer 1. [Back]

Note 81 Paragraph 7 of Hargreaves 1; paragraph 12 of Wathion 1. [Back]

Note 82 Paragraphs 23, 24 and 26 of Hargreaves 1. [Back]

Note 83 Given their volume and detail, what follows is necessarily a somewhat broad-brush description of the terms of the Agreements. Where necessary, I shall quote specifically from the terms of the Agreements, but on the whole this is unnecessary for the purposes of this case. [Back]

Note 84 Paragraph 12 of Iacobescu 1. [Back]

Note 85 See clause 1.129 of the Agreement for Lease. [Back]

Note 86 The Agreement for Lease contained various options for the EMA to exercise. This was to provide flexibility to the EMA because of the uncertainty regarding the EMA’s needs: see paragraph 34 of Hargreaves 1. In the end, by a “Deed of Variation” dated 7 February 2014, the Premises that the EMA was to lease were defined and the options originally contained in the Annex 15 Draft Lease fell away. [Back]

Note 87 See paragraph 13 of Iacobescu 1. [Back]

Note 88 See paragraph 43 of Hargreaves 1. [Back]

Note 89 See paragraph 44 of Hargreaves 1. This was, I was told in evidence, because of the very large number of delegates visiting the EMA each year (c. 30,000 per year). [Back]

Note 90 He refers to these generally in paragraph 49 of his statement, but expanded on the position when giving evidence. [Back]

Note 91 In other words, stripping out the EMA-specific fittings. [Back]

Note 92 Paragraph 45 of Hargreaves 1. [Back]

Note 93 The European Agency for the Evaluation of Medicinal Products. [Back]

Note 94 The 2004 Regulation has been amended on multiple occasions: I refer to the 2004 Regulation in its amended state. [Back]

Note 95 See Geiger, Khan & Kotzur, European Union Treaties , 1st ed (2015) (“ European Union Treaties ”), p.1018 (commentary on Article 335 TFEU at paragraph 1). [Back]

Note 96 At the time, it was the European Community. For convenience, I shall refer to the “European Union” throughout this Judgment. [Back]

Note 97 Emphasis added. [Back]

Note 98 Article 28c of the 2004 Regulation. [Back]

Note 99 See Article 67(3) of the 2004 Regulation. Article 57(1) of the 1993 Regulation is in similar terms. [Back]

Note 100 See Article 70 of the 2004 Regulation. Article 58 of the 1993 Regulation is in similar terms. [Back]

Note 101 See, for example, Council Regulation (EC) No 297/95 of 10 February 1995. [Back]

Note 102 Article 67(5) of the 2004 Regulation. The wording of Article 57(2) of the 1993 Regulation is not materially different. [Back]

Note 103 See Article 67(2) of the 2004 Regulation. Article 57(4) of the 1993 Regulation is in similar terms. [Back]

Note 104 See Article 67 of the 2004 Regulation. Article 57 of the 1993 Regulation is in similar terms. [Back]

Note 105 Steikunas 1 (emphasis added). [Back]

Note 106 Most of the provisions of this Regulation entered into force on 1 January 2014, with some coming into effect later (on 1 January 2015 and 1 January 2016). [Back]

Note 107 See paragraph 11 of Iacobescu 1. [Back]

Note 108 See paragraph 1.3 of the EMA’s Notification. [Back]

Note 109 Article 74 of the 2004 Regulation. Article 63 of the 1993 Regulation is in similar terms. [Back]

Note 110 See European Union Treaties , p.10 (commentary on Article 1 TEU, paragraph 5). [Back]

Note 111 A point considered further below. [Back]

Note 112 See the definition of “Treaties” or “EU Treaties” in section 1(2) of the 1972 Act. [Back]

Note 113 That also appears to be the view of the Foreign and Commonwealth Office: see its letter to the EMA’s predecessor dated 24 June 1996, regarding the application of a predecessor of Protocol 7 in the United Kingdom. [Back]

Note 114 See paragraphs 19 to 23 of Wathion 1. [Back]

Note 115 Paragraph 21 of Wathion 1. [Back]

Note 116 Unlike in the case of non-contractual liability, where the relevant forum is the CJEU, such a claim would be before a national court (see Article 72 of the 2004 Regulation, quoted in paragraph 77 above) and the EMA has the competence to be a party to such proceedings (see Article 71 of the 2004 Regulation, quoted in paragraph 65 above). [Back]

Note 117 See, for example, Case T-345/05, Mote v. European Parliament [2008] ECR II-2849. [Back]

Note 118 See Laenaerts, Maselis & Gutman, EU Procedural Law , 1st ed (2014), ch. 14. [Back]

Note 119 This provision has applied at all material times: it was previously Art 289 of the Treaty Establishing the European Communities (“TEC”). [Back]

Note 120 This was, of course, a reference to the EMA’s predecessor, the European Agency for the Evaluation of Medicinal Products. [Back]

Note 121 In some cases, no specific town was provided for, Thus, Article 1(c) provided that “[t]he Office for Veterinary and Plant-Health Inspection and Control shall have its seat in a town in Ireland to be determined by the Irish Government”. [Back]

Note 122 Again, I shall seek to avoid direct quotation of very lengthy provisions, and instead summarise the effect of these provisions. I have, at all times, had in mind the full wording of the provisions. I quote from the Lease, but the Annex 15 Draft Lease was in all material respects the same. [Back]

Note 123 There were provisions specific to the EMA regarding use of floors “for hotel use to be used for delegates”, for the sale of alcohol and for use as a travel agency. These were all provisions bespoke to the specific needs of the EMA. [Back]

Note 124 See clause 4.21.1(a). [Back]

Note 125 See clause 4.21.1(c). [Back]

Note 126 See clause 4.21.1(b). [Back]

Note 127 See clause 4.21.1(b). [Back]

Note 128 See clause 4.21.1(c). [Back]

Note 129 I shall refer to CW rather than the landlord, although CW could of course alienate its interest. [Back]

Note 130 See clause 4.21.1(c). [Back]

Note 131 See clause 4.21.1(d). [Back]

Note 132 See clause 4.21.1(d). [Back]

Note 133 See clause 4.21.1(d). [Back]

Note 134 See clause 4.21.2. [Back]

Note 135 See clause 4.21.2(a)(i). [Back]

Note 136 See clause 4.21.2(a)(iii). [Back]

Note 137 See clause 4.21.2(a)(iii). [Back]

Note 138 See clause 4.21.2(b)(i). [Back]

Note 139 See clause 7.5. [Back]

Note 140 See, for example, clause 9.18.2 and clause 9.16, quoted below. [Back]

Note 141 Paragraph 49 of Hargreaves 1. [Back]

Note 142 See paragraph 77 above. [Back]

Note 143 Emphasis added. [Back]

Note 144 See paragraph 85 of the Particulars of Claim. See also Section J of the EMA’s written submissions. [Back]

Note 145 This is the date on which the United Kingdom withdraws from the European Union and becomes a third country. [Back]

Note 146 The EMA contended that unless I was of the view that the EMA would be acting ultra vires , and so should uphold its case, I should make a preliminary reference to the CJEU rather than determining the matter. [Back]

Note 147 Haugesund Kommune v. Depfa Bank [2010] EWCA Civ 579 at [38]. [Back]

Note 148 A term defined in section 6(7) of the 2018 Act. It includes all EU-derived domestic legislation and all direct EU legislation. [Back]

Note 149 In other words, section 2 is concerned with non-directly effective European Union law or law that does not amount to enforceable EU rights. Generally speaking, such law is implemented pursuant to section 2(2) of the European Communities Act 1972, which provides for a broad power to implement European Union law without the need for primary legislation. [Back]

Note 150 See section 3(2) of the 2018 Act. [Back]

Note 151 The mechanisms for achieving this were briefly considered in footnote 24 above. [Back]

Note 152 [2010] EWCA Civ 579 at [47]. [Back]

Note 153 Haugesund Kommune v. Depfa Bank , [2010] EWCA Civ 579 at [27]-[28] ( per Aikens LJ). [Back]

Note 154 Collins (ed), Dicey, Morris & Collins: The Conflict of Laws , 15th ed (2012) (“ Dicey ”) at [1-065]. [Back]

Note 155 Dicey at [1-065]. [Back]

Note 156 European Union Treaties , p.893 (commentary on Article 234 TFEU, paragraph 1). [Back]

Note 157 [1993] QB 534 at 545. [Back]

Note 158 [2001] EWCA Civ 65 at [52]. [Back]

Note 159 [1987] ECR-4199. [Back]

Note 160 At [9]. [Back]

Note 161 At [11] ff . [Back]

Note 162 See paragraph 116 above. [Back]

Note 163 See paragraph 115 above. [Back]

Note 164 See paragraph 96(3)(a) above. [Back]

Note 165 See paragraph 96(3)(b) above. [Back]

Note 166 As Hartley notes (Hartley, The Foundations of European Union Law , 8th ed (2014) (“ Hartley ”) at 306), “this approval was subject to so many conditions that one might think the [CJEU] was really trying to kill the idea”. [Back]

Note 167 [1982] ECR 3415 . [Back]

Note 168 Hartley , p.306. [Back]

Note 169 Again, the test of Sir Thomas Bingham MR in Else : see paragraph 115 above. [Back]

Note 170 These are comprehensively defined in the first paragraph of Article 263 TFEU. [Back]

Note 171 Hartley , p.419. [Back]

Note 172 European Union Treaties , p.36 (commentary on Article 5 TEU, paragraphs 3-5). [Back]

Note 173 Case T-143/06, MTZ Polyfilms Ltd v. Council of the European Union , [2009] ECR II-4135 at [50]; Joined Cases C-14/09 and C-295/06, Parliament v. Commission [2008] ECR I-1649 at [52]. [Back]

Note 174 Case T-143/06, MTZ Polyfilms Ltd v. Council of the European Union , [2009] ECR II-4135 at [47]; Joined Cases C-14/09 and C-295/06, Parliament v. Commission [2008] ECR I-1649 at [52]. [Back]

Note 175 See paragraphs 81-83 above. [Back]

Note 176 See paragraph 106(1)(a) above. [Back]

Note 177 I consider the appropriateness of that assumption below. [Back]

Note 178 Emphasis supplied. [Back]

Note 179 As to this, see Bailey & Norbury, Bennion on Statutory Interpretation , 7th ed (2017) (“ Bennion ”) at [4.6] and [4.8]. [Back]

Note 180 See paragraph 106(1)(c) above. [Back]

Note 181 See paragraph 32 of Wathion 1. [Back]

Note 182 There would be an extremely difficult question of jurisdiction: would the CJEU have jurisdiction regarding a Protocol 7 protection not conferred by European Union law but conferred by United Kingdom law? [Back]

Note 183 Paragraph 32.1 of Wathion 1. Of course, I accept that the European Union and the United Kingdom could, bilaterally, negotiate a treaty providing the EMA with suitable protections, as has been done – in a more limited way – in the Withdrawal Agreement. This, however, as it seems to me, is nothing to the point. [Back]

Note 184 CW’s point appeared to be that actions by a party to a contract seeking to minimise the adverse consequences of a prospective frustrating rendered the prospective frustrating event not a case of frustration at all. I reject that argument, which is inconsistent with the analysis in Treitel , ch 9. [Back]

Note 185 It matters not what the claim might be. Mr de la Mare, QC, suggested a number of examples, such as a claim by a visitor under the Occupiers’ Liability Act 1957. [Back]

Note 186 See paragraph 133(3)(b) above at footnote 182. [Back]

Note 187 See paragraph 64 above. [Back]

Note 188 See paragraph 66 above. [Back]

Note 189 I shall assume a third country party to the Hague Convention on Choice of Court Agreements 2005. [Back]

Note 190 [2006] ECR I-7823. [Back]

Note 191 At [86]. [Back]

Note 192 At [94]. [Back]

Note 193 Now repealed. [Back]

Note 194 Now repealed. [Back]

Note 195 Now Article 335 TFEU. [Back]

Note 196 [2016] 2 CMLR 248. [Back]

Note 197 At [58] ff . [Back]

Note 198 The International Tribunal for the Law of the Sea. [Back]

Note 199 See Section C(3) (d) above. [Back]

Note 200 See Section C(3) (h) above. [Back]

Note 201 See Section D(4) (b)(i) above. [Back]

Note 202 See Section D(4) (b)(ii) above. [Back]

Note 203 See paragraph 58 above at footnote 89. [Back]

Note 204 ICJ Rep 1969 p3 at [74]. [Back]

Note 205 The only possible exception – and, in a sense, it is an exception that proves the rule – is the European Union External Action Service (the “EEAS”). The EEAS is headquartered in Brussels but has diplomatic missions outside the territories of the Member States of the European Union. That, it might be said, is self-evidently necessary in the case of an External Action Service. [Back]

Note 206 See paragraph 147 above. [Back]

Note 207 See Section D(4) (b)(iii) above. [Back]

Note 208 See paragraph 147 above. [Back]

Note 209 See paragraph 106(2) above. [Back]

Note 210 See Section D(4) (b)(i) above. [Back]

Note 211 See Section D(4) (b)(ii) above. [Back]

Note 212 See paragraph 158(2) above. [Back]

Note 213 See paragraph 39 above. [Back]

Note 214 [2016] UKSC 42 . [Back]

Note 215 Chitty , at [16-003]. Chitty goes on to describe the range of types of illegality considered in ch. 16 at [16-004]. [Back]

Note 216 Chitty describes this as a “subsequent change in the law or in the legal position affecting a contract”, which neatly encapsulates the two alternatives. [Back]

Note 217 (1869) LR 4 QB 180 [Back]

Note 218 At 184-185. [Back]

Note 219 At 185. [Back]

Note 220 At 185. [Back]

Note 221 At 185. [Back]

Note 222 At 186. [Back]

Note 223 At 187-188. [Back]

Note 224 At 188. [Back]

Note 225 At 189. [Back]

Note 226 [1934] AC 176 . [Back]

Note 227 At 179: Lord Atkin expressed no final opinion on this but did not base his conclusion on this theory. [Back]

Note 228 At 179: Lord Atkin rejected this. [Back]

Note 229 At 180. [Back]

Note 230 See Section D(3) (a) above. [Back]

Note 231 Dicey , at [30R-020]. Emphasis added. [Back]

Note 232 See paragraph 92(8) above. [Back]

Note 233 Dicey , at [30-021] and [30-022]. [Back]

Note 234 Chitty, [42-064]. [Back]

Note 235 Article 12(1)(b). [Back]

Note 236 Article 12(1)(d). [Back]

Note 237 Chitty , at [30-270]. [Back]

Note 238 Chitty , at [23-027]. [Back]

Note 239 Chitty , at [23-027]. [Back]

Note 240 [2010] EWCA Civ 579 . [Back]

Note 241 At [28]-[29]. [Back]

Note 242 [2018] UKSC 34 at [12]. This case was not cited to me. However, the two authorities referenced by Lord Sumption at [12] were. I regard Lord Sumption’s summary of the effect of these cases as both authoritative and extremely clearly put. [Back]

Note 243 In other words, this is the sort of case contemplated by the court in Baily v. De Crespigny at paragraph 173(2) above. [Back]

Note 244 See Section D above. [Back]

Note 245 See paragraph 189 above. [Back]

Note 246 [1916] 1 KB 20. [Back]

Note 247 See the statement of facts at 21. [Back]

Note 248 At 23. [Back]

Note 249 At 24. [Back]

Note 250 See paragraph 191 above at footnote 247. [Back]

Note 251 See paragraph 46 above. [Back]

Note 252 See paragraphs 44 ff above. [Back]

Note 253 See paragraph 44 above. [Back]

Note 254 See paragraph 14(7) above. [Back]

Note 255 See Section D above. [Back]

Note 256 See Section E(2) (c) above. [Back]

Note 257 See paragraph 39 above. [Back]

Note 258 To use Lord Radcliffe’s words: see paragraph 22 above. [Back]

Note 259 See Summerfield 1. [Back]

Note 260 By that I mean sufficiently foreseeable that a court could draw the sort of inference I describe in paragraph 211 above. [Back]

Note 261 See paragraph 93 above. [Back]

Note 262 See paragraph 76 above. [Back]

Note 263 See paragraph 92(6) above. [Back]

Note 264 See the definition of “Documents” and paragraph 1.2 of the letter. [Back]

Note 265 See paragraph 1.3 of the letter. [Back]

Note 266 See paragraph 2.1(a) of the letter. It is fair to point out that this was in the summary section of the letter. [Back]

Note 267 See paragraph 1.6(g) of the letter. [Back]

Note 268 See paragraph 1.1 of the letter. [Back]

Note 269 Steikunas 1. [Back]

Note 270 See paragraphs 75-76 above. [Back]

Note 271 See Section D(4) (b)(ii) above. [Back]

Note 272 See Section D(4) (b)(i) above. [Back]

Note 273 Applying the test in Davis Contractors Ltd v. Fareham UDC , quoted at paragraph 22 above. [Back]

Note 274 See paragraphs 26 and 29 above. [Back]

Note 275 See paragraphs 26(4) and 26(5) above. [Back]

Note 276 See Section B(3) above. [Back]

Note 277 Thus, there were options for the EMA to take more space; and the EMA could – by sub-letting parts of the Premises, reduce the amount of space it was letting. [Back]

Note 278 See paragraphs 229-230 above. [Back]

Note 279 Matters might well be different if CW were, for example, relying upon clause 4.25.1 of the Lease, which is set out at paragraph 92(5) above. This provision obliges the EMA to comply at its own expense with all subsequent regulations issued by the European Union. It might well be contended that this provision expressly imposes on the EMA the costs of complying with the 2018 Regulation. CW did not rely on this provision in this way, and it is easy to see why: this provision is not directed to the question of the EMA’s involuntary departure from the Premises due to the 2018 Regulation, but to the EMA’s obligation to comply with laws concerning its occupation of the Premises. [Back]

Note 280 See paragraph 92(2) above. [Back]

Note 281 Treitel , at [7-023]. [Back]

Note 282 In Article 119. [Back]

Note 283 See the earlier discussion on this point. [Back]

Note 284 See sections 5(1) and 6(1)(a) of the European Union (Withdrawal) Act 2018. [Back]

Note 285 Case C-453/99, Courage v. Crehan [2001] ECR I-6297 . [Back]